Refugees Amendment Bill [B30-2010]: Department response to submissions
01 November 2010
Chairperson: Mr M Maunye (ANC)
The Department of Home Affairs presented its comments on submissions made during the public hearings on the Refugees Amendment Bill. The Department provided responses to the submissions made by the University of Cape Town Law Clinic, Forced Migration Studies Programme of Wits University, the Southern African Catholic Bishops Conference, the Conference and SCCT, the Lawyers for Human Rights, the South African Media and Gender Institute. The Department further provided responses to the submissions by the Law Society of South Africa, the People against Suffering Suppression Oppression and Poverty and Ekasi Development Project.
The Department said it would amend two clauses in the Bill based on the submissions it had received from civil society. These amendments pertained to the definition of biometrics, and the reinstitution of the powers of the UNHCR in dealing with refugee matters. The Department addressed all comments raised in the public submissions and provided reasons for not amending certain parts of the Bill. Amongst those responses was the justification for the Department’s position on the powers granted to the Director General to deal with manifestly unfounded cases. The Department said the Director General was capable of dealing with such cases and would be further capacitated to handle more cases. In response to the concern about a political office bearer serving on the Refugees Appeal Authority, the Department stated that the Authority was an independent body and functioned without interference from the Department or Minister. Thus the Department did not foresee any person, including a political office bearer, having a conflict of interest, as such person would not be advancing a political view but dealing with appeals within the limits of the Refugee Act.
Members asked if the Department catered for refugee status applicants with children who had not initially accompanied the applicant to South Africa but had moved later on to join the applicant. Questions were asked about: the fairness of an application being rejected without input from the applicant in person; the Status Determination Committee’s composition and rules governing it; political office bearers being allowed to hold positions on the Refugee Appeals Authority.
Members commented that the Department had to be mindful of the political situation and judicial system in the refugee’s countries of origin. They disapproved of the inadequate time given to refugees to register children born in SA. The Department should not remove the United Nations High Commission on Refugees (UNHCR) from its role of interacting with refugees directly. Some members voiced support for denying people asylum who were guilty of committing serious crimes in their countries of origin. However others said the Department was vague on the definition of serious crime.
Ms Agnes Molefe, Legal Officer: Department of Home Affairs, presented the Department’s responses to public submissions on the Refugee Amendment Bill. In response to a submission by the South African Media and Gender Institute (SAMGI) on rewording the definition of ‘biometrics’ so that it was not prone to racial profiling interpretation, the Department would amend Clause 1(a) of the Bill by deleting the words “facial patterns”.
The Department undertook to remove Clause 6(b) of the Bill which proposed to delete Section 24(2)(b) of the Refugee Amendment Act, 2008. The Department would reinstate Section 24(2)(b) into the Act as recommended by the Lawyers for Human Rights, the South African Catholic Bishops Conference and the Scalabrini Centre. This provision allowed the United Nations High Commissioner for Refugees (UNHCR) to have direct interaction with refugees: ”may consult with or invite a UNHCR representative to furnish information on specified matters”. The Department would amend Clause 8(c) of the Bill which proposed to delete Section 24B(3)(a) of the Refugee Amendment Act, 2008. It would reinstate Section 24B(3)(a) into the Act. This provision allowed any asylum seeker whose application has been rejected, “to invite a UNHCR representative to make oral or written representations” when appealing to the Refugee Appeals Authority.
The Department had yet to provide clear guidelines on what sort of constitution would guide the proposed Status Determination Committee which would determine whether refugees were granted status or not. On powers granted to the Director General of the Department and the fairness of those procedures as raised by the Law Society of South Africa, the Department responded that it was of the view that the automatic review of manifestly unfounded applications as provided for in the Act was procedurally fair. The Department contended that Section 24A(2) in the Amendment Act of 2008 empowered the Director-General to request any person to provide information; to make further enquiries; and to request the applicant to provide any information deemed necessary. The Director-General would perform this function and there would be administrative support provided for the Director-General.
In response to a concern about a political office bearer being allowed to serve on the Refugees Appeal Authority, the Department stated that the Authority was an independent body and functioned without interference by either the Department or the Minister. Therefore, the Department did not foresee any person, including a political office bearer, having a conflict of interest, as they would not be advancing any political viewpoint but dealing with appeals within the limits of the Refugee Act.
Referring to the Ekasi Development Project submission on the lack of provision for unaccompanied minors, the Department stated that the provision dealing with unaccompanied minors was made in section 21A of the Amendment Act 33 of 2008 which outlined the procedure to be followed in handling unaccompanied minors. In response to the SACBC and Scalabrini Centre on a similar issue, the Department said that their comments about the form provided to unaccompanied minors was unfriendly to children was welcome. The Department indicated that when making Regulations on the procedure for the referral of children to the Children’s Court, provision would be made for officials of the Department to assist children in filling the applications forms, where appropriate. The referral was meant to ensure that the unaccompanied minors received proper assistance from social workers.
Ms A Lovemore (DA) asked if the Department catered for the scenario where a child had not initially accompanied the refugee status applicant to South Africa but the child moved later on to join the applicant. She sought clarity on the fairness of an application being rejected without input from the applicant in person. She expressed concern about the vague nature of the wording in the provision about the powers granted to the Director General in dealing with pending cases placed before the SDC. As the regulations formulated for the Bill dealing with the constitution of the SDC did not require public input, how could the Committee be sure that the SDC would have proper criteria for its members prior to their selection on the body? The Department response was vague on the area of “serious crimes” and what constituted a crime serious enough for a refugee to be denied asylum in the country. Why should political office bearers be allowed to serve on the Refugee Appeals Authority if they could potentially toe a political party line and not look at applicants objectively? The Department should take into account the time spent in the country by an applicant prior to being granted status when considering the application. She sought clarity on the Department response about unaccompanied minor regulations. She commented that the application forms given to an unaccompanied minor were not adequate to ascertain all the information about that minor. A clear and unambiguous immigration policy would be needed in the long term in order to best deal with problems affecting migration.
Mr Jackie Mackay, Deputy Director-General: Immigration Services, DHA, replied that the Department included questions which asked a refugee applicant whether they had children upon making an application for status. This would then allow the Department to know whether the refugee might be joined at a later stage by a child even if the child had not accompanied the applicant to the country initially. This provision further acted to combat human trafficking. The Department felt that the provision about the Director General reviewing applicants without their physical presence was fair. If the Director General was unhappy with a particular applicant or application, he could summon that applicant to answer questions in person. There were clear criteria which outlined how a person was classified and what the person would have to do should their application be found to be manifestly unfounded. Adv Deon Erasmus, Chief Director of Legal Services: Department of Home Affairs said that the SDC and rules pertaining to it would be dealt with by the Bill’s regulations. Mr Mackay added that that was an administrative function.
The Chairperson sought clarity on the SDC’s composition and rules governing it.
Adv Erasmus responded that the rules governing the current refugee status determination officers (RSDOs) would be used as a template for the rules governing the SDC and those rules were included in the Refugee Amendment Act of 2008 which would only come into being when the Bill under consideration was enacted.
Mr Mackay explained that it was the nature of serious crime that dictated that a refugee be denied status. If the crime a refugee committed in the country of the origin was serious enough to warrant arrest in South Africa, then that refugee would be denied asylum in the country. Adv Erasmus added that a crime was deemed serious if a refugee faced imprisonment in the country of origin without the option of paying a fine to avoid imprisonment.
Adv Frank Jenkins, Parliamentary Legal Adviser, commented that the concern was the wording of the “serious crimes” provision was too vague. The language should be unambiguous and clearer.
Mr Mackay explained the Department did not wish the SDC body to be statutory. The SDC was necessary because the granting status should not be the sole duty of one person as the RSDO system allowed for.
Ms Bongiwe Lufundo, State Law Adviser voiced her agreement with Mr Mackay on the SDC issue.
Adv Jenkins agreed that the SDC was an administrative body and as such should be constituted with a view to ensuring that the decisions it made were redoubtable. He commented that if there was to be any debate about the Refugee Appeals Authority, it would be about political office bearer.
The Chairperson requested that the Department should consult and then send the Committee a more comprehensive answer on how the SDC would be constituted and operated.
Mr Mackay referring to political office bearers holding positions on the Refugee Appeals Authority, said there would be clear guidelines that would obligate all its members to consider every application it received extensively thus politics would not play a role in deciding whether a refugee received status or not.
Ms Molefe added that the body would be non political and serve to merely establish whether a refugee should receive status in the country or not.
Adv Jenkins agreed that the SDC would be an administrative body. However, thought should go into the wisdom of allowing political office bearers to serve on the Refugee Appeals Authority.
Mr Mackay said that the Department would consult about the SDC and send the Committee a more comprehensive answer on its constitution and the criteria for people serving on it. He voiced his agreement with Ms Lovemore’s earlier point on the need for a more comprehensive and clear immigration policy. The Department, in drafting legislation, did not legislate on inefficiencies in the system. Thus her point that time spent in the country prior to receiving a permit due to delays, could not be taken into account for a refugee. In the near future the Department would seek to introduce policies aimed at separating genuine refugee seekers from economic migrants who posed as refugees. This would assist the Department in clearing its backlog and in dealing more efficiently with immigration matters. Regarding unaccompanied minors, the Department would look at ways of improving interdepartmental cooperation so that these minors were taken to the Department of Social Development to ensure that they were dealt with.
Mr M Mnqasela (DA) commented that refugees who committed serious crimes in their countries of origin was a serious matter. The Department should be mindful of the political situation and the court system in the refugee’s countries of origin in dealing with refugee applicants. The provision which gave a refugee a month to register a child born in the country was not adequate and the period should be longer. The Department should not remove the United Nations High Commission on Refugees (UNHCR) from its role of interacting with refugees directly but should seek to integrate the organisation in the carrying out of the Department’s work. It was not good enough for the Department to say that it “did not legislate for inefficiencies” in its own system. How did the Department assess the seriousness of a crime committed by a refugee applicant?
Mr Mackay replied that the Department interviewed refugee applicants extensively to get a sense of the situation in the country of origin and then did country research to verify the applicant’s story. This was done to assess the level of seriousness of the crime committed in that country. The Department did not notify or interact with the authorities in the country of origin about the whereabouts of a refugee in order to protect that refugee from possible persecution. The provision on length of time allowed to register a child could not be changed as that was the time period granted to South African citizens to do the same thing and as long as that was the provision for citizens, it would be the provision for refugees. The Department would work to improve its efficiency and the Bill under discussion would assist in doing that. The separation of economic migrants from genuine refugees would further help clear the backlog.
Mr J Thibede (ANC) voiced his appreciation for the Department’s responses. He was in support of denying people asylum that were guilty of committing serious crimes in the country of origin. The issue of political office bearers being permitted to serve in the Refugees Appeal Authority could be cleared up with a proper definition of what an office bearer was, in the Bill.
Mr Mackay responded that the Department would look at the political office bearers issue and respond to the Committee’s concerns by drafting a definition.
Ms D Mathebe (ANC) asked whether refugee children in the country were entitled to receive the state grant.
Mr Mackay responded that refugee children in the country had the same rights as children who were citizens except the right to vote. He could not respond on whether they were entitled to the grant because the Department of Social Development was in charge of issuing grants and would be better placed to answer such a query.
Ms T Gasebonwe (ANC) asked if the Department checked with the applicant’s country of origin before granting or denying an application.
Mr Mackay responded that the Department did not notify or interact with the authorities of a country of origin on the whereabouts of a refugee applicant in order to protect that refugee from possible persecution.
Ms Maduna-Peterson (ANC) asked what had happened to the two men originally from Botswana who had committed crimes in that country and then been arrested in South Africa.
Adv Erasmus replied that the case was ongoing and as such he could not comment on it.
Mr Thibede asked why refugee children were not noted on the National Population Registry.
Mr Mackay responded that it was because refugees were thought of as living in the country on a temporary basis and who would return to their country of origin if things improved there. They had a separate registry which was used by the Department to keep track of all the refugees and asylum seekers in the country. Adv Erasmus added that a refugee child born in the country was issued with a certificate acknowledging their birth in the country.
The Chairperson said that there were people in the country who had committed crimes in their countries of origin but had not been dealt with by the law and that would have to be looked at seriously in the future.
The meeting was adjourned.
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